IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CRE NIAGARA HOLDINGS, LLC,

CLUB EXPLORIA, LLC, and CRE 

NIAGARA PARTICIPATION 

HOLDINGS, LLC,

 Plaintiffs,

v.

RESORTS GROUP, INC.,

 Defendant.

C.A. No. N20C-05-157 PRW CCLD

CRE NIAGARA HOLDINGS, LLC,

CLUB EXPLORIA, LLC, and CRE 

NIAGARA PARTICIPATION 

HOLDINGS, LLC,

 Plaintiffs,

v.

RESORTS GROUP, INC.,

 Defendant.

C.A. No. 2021-0953-PW

Submitted: March 1, 2023

Decided: March 24, 2023

MEMORANDUM OPINION AND ORDER

Upon Defendant Resorts Group, Inc.’s Superior Court Motion to Dismiss for Lack 

of Subject Matter Jurisdiction and Superior Court Motion for Partial Judgment on 

the Pleadings,

DENIED.
Upon Defendant Resorts Group, Inc.’s Court of Chancery Motion to Dismiss for 

Lack of Subject Matter Jurisdiction,

GRANTED.

Upon Plaintiffs CRE Niagara Holdings, LLC, et al.’s Court of Chancery Motion 

for Partial Summary Judgment on Counts III and IV,

DENIED AS MOOT.

Richard P. Rollo, Esquire, Travis S. Hunter, Esquire, Dorronda R. Bordley, Esquire, 

RICHARDS, LAYTON & FINGER, P.A., Wilmington, Delaware; J. David Washburn, 

Esquire, Charles L. Perry, Esquire, KATTEN MUCHIN ROSENMAN LLP, Dallas, Texas; 

David A. Crichlow, Esquire, Brian L. Muldrew, Esquire, KATTEN MUCHIN 

ROSENMAN LLP, New York, New York, Attorneys for Plaintiffs CRE Niagara 

Holdings, LLC, Club Exploria, LLC, and CRE Niagara Participation Holdings, 

LLC. 

Garvan McDaniel, Esquire, HOGAN MCDANIEL, Wilmington, Delaware; David S. 

Rosner, Esquire, Ronald R. Rossi, Esquire, Paul J. Burgo, Esquire, Stephen P. 

Thomasch, Esquire, Jed I. Bergman, Esquire, KASOWITZ BENSON TORRES LLP, New 

York, New York, Attorneys for Defendant Resorts Group, Inc.

WALLACE, J.
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The Plaintiffs originally filed this action in the Superior Court on May 18, 

2020. Shortly thereafter, the Plaintiffs filed an Amended Complaint, asserting 

claims against the Defendant for (1) fraudulent inducement, (2) breach of 

contract/indemnification, and (3) declaratory relief. The dispute centers around one 

primary agreement, two ancillary agreements, and a supplemental agreement.

In April 2021, the Court issued a decision denying the Defendant’s motion to 

dismiss the Amended Complaint. Thereafter, the Defendant filed an Answer, 

Counterclaims, and a Third-Party Complaint (that also was later amended) asserting

claims against Third-Party Defendants on eleven grounds. In May 2022, the Court 

issued a second decision denying in part and granting in part the motions to dismiss 

the Counterclaims and Third-Party Complaint, as well as denying the Defendant’s 

motion to stay. 

The Defendant has filed a Motion to Dismiss the Amended Complaint for 

Lack of Subject Matter Jurisdiction and for Partial Judgment on the Pleadings 

relating to Plaintiff’s declaratory judgment claim. That Motion is now ripe for 

decision.

Relatedly, the same Plaintiffs filed a Complaint against the same Defendant 

in the Court of Chancery (that also was later amended) and asserts claims for specific 

performance and anticipatory repudiation, and seeks three declarations. The 

Defendant has filed a Motion to Dismiss the Chancery Amended Complaint. That 
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Motion, too, is now ripe for decision. Additionally, the Plaintiffs have filed a Motion 

for Partial Summary Judgment relating to two of the declaratory judgment claims. 

That Motion is also now ripe for decision. 

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts here are taken from the Superior Court action’s Amended 

Complaint1and the Court of Chancery action’s Amended Complaint.2 The facts 

overlap and will be discussed together. As there are two previously-issued decisions 

from the Superior Court action,3the Court will only provide a brief recitation of the 

facts here.

A. THE PARTIES

Plaintiffs CRE Niagara Holdings, LLC (“CRE Niagara”); Club Exploria, 

LLC, a successor by merger to CRE Bushkill Group, LLC; and CRE Participation 

Holdings, LLC (collectively, “CRE” or “Plaintiffs”) are Delaware LLCs.4 CRE 

1 Plaintiffs’ Superior Court Amended Complaint (“SAC”), Sept. 15, 2020 (D.I. 40 Super.). The 

Superior Court action is N20C-05-157 PRW CCLD. Any document identifier number from this 

action will be distinguished by the designation “Super.”; for example, (D.I. 40 Super.).

2 Plaintiffs’ Court of Chancery Amended Complaint (“CAC”), June 7, 2022 (D.I. 35 Ch.). The 

Court of Chancery action is captioned 2021-0953 PW. Any document identifier number from this 

action will be distinguished by the designation “Ch.”; for example, (D.I. 35 Ch.).

3 CRE Niagara Hldgs., LLC v. Resort Groups, Inc., LLC, 2021 WL 1292792 (Del. Super. Ct. 

Apr. 7, 2021) (denying Defendant’s Motion to Dismiss); CRE Niagara Hldgs., LLC v. Resort 

Groups, Inc., 2022 WL 1749181 (Del. Super. Ct. May 31, 2022) (denying, in part, and granting, 

in part, Plaintiffs’/Third-Party Defendants’ Motion to Dismiss, and denying Defendant’s Motion 

to Stay).

4 SAC ¶¶ 5-7.
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Niagara and Club Exploria, LLC are also citizens of Pennsylvania and have 

members who are citizens there.5 Defendant Resorts Group, Inc. (“RGI” or 

“Defendant”) is a Pennsylvania corporation with its principal place of business in 

East Stroudsburg, Pennsylvania.6 Before the transaction at the center of this 

controversy occurred RGI owned timeshare resorts in Pennsylvania.7

B. THE UNDERLYING TRANSACTION

On May 19, 2017, RGI and CRE Niagara entered into a Unit and Asset 

Purchase Agreement (the “UAPA”), through which CRE Niagara acquired the assets 

of the Pennsylvania timeshare resorts and ownership of specified entities, including 

CRE Bushkill Group, LLC.8 CRE Niagara purchased the timeshare business and 

existing timeshare contracts, and RGI retained the right to the payment stream under 

those contracts.9 There are four agreements to the transaction: (1) the UAPA;

10

 

(2) the Servicing Agreement, which addressed the servicing of receivables from 

sales by RGI;

11 (3) the Participation Agreement, which provided CRE an interest in 

the receivables collected by RGI from the Servicing Agreement (the Servicing and 

5

See id. ¶ 10.

6

Id. ¶ 7.

7

Id. ¶ 13.

8

Id. ¶¶ 15-16.

9

See id. ¶¶ 23-25.

10 See id. ¶ 16.

11 See id. ¶ 25.
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Participation Agreements are the “Ancillary Agreements”);

12 and (4) the 

Supplemental Agreement, which supplemented the Servicing and Participation 

Agreements.

13

 The Ancillary Agreements were executed on May 18, 2017.14 The 

Supplemental Agreement was executed on December 28, 2018.15

C. SUPERIOR COURT PROCEDURAL HISTORY

Eventually, a dispute arose between the parties regarding RGI selling 

timeshares, pre-transaction, to “less creditworthy” purchasers, which CRE believes 

was contrary to the representations and warranties made by RGI in the UAPA.16 In 

May 2018, RGI sent CRE a letter asserting that CRE’s collected funds didn’t meet 

scheduled benchmarks, but CRE denied such shortfall and instead blamed RGI for 

its alleged misrepresentations.17

CRE filed the current Superior Court action on May 18, 2020.18 The same 

day, RGI filed an action in the United States District Court for the Southern District 

of New York asserting breach-of-contract claims under the agreements.19 On May 

12 See id. ¶¶ 17, 23.

13 See id. ¶ 43 n.5.

14 Id. ¶ 17.

15 Id., Ex. J.

16 See id. ¶¶ 28-30; CRE Niagara Hldgs., LLC, 2021 WL 1292792, at *1-2.

17 See SAC ¶¶ 29-31, Ex. D, Ex. E.

18 See Complaint (“Compl.”), May 18, 2020 (D.I. 1 Super.).

19 See Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction and for Partial 

Judgment on the Pleadings (“Def.’s Super. MTD”) at 6, Aug. 15, 2022 (D.I. 156 Super.).
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19, 2020, RGI filed an action in the United States District Court for the District of 

Delaware.20 In August 2020, both federal actions were dismissed for lack of 

diversity.21

In July 2020, RGI filed a motion to dismiss CRE’s Complaint in the Superior 

Court action.22 In August 2020, RGI filed an amended motion to dismiss, or, in the 

alternative, to stay the Superior Court action.23 In September 2020, CRE filed the 

current Amended Complaint, asserting claims for fraudulent inducement (Count I), 

breach of contract/indemnification (Count II), and a declaratory judgment (Count 

III).24 Count III is at issue now. Count III seeks a declaration that “there is no 

subsisting claim by RGI for any default of [sic] breach by any Plaintiff of the UAPA, 

the Servicing Agreement and/or the Participation Agreement,” and that Club 

Exploria “is entitled to terminate the Servicing Agreement and/or is not restricted or 

obligated by” a schedule attached to the agreements.25 In October 2020, RGI filed 

a motion to dismiss the Amended Complaint, or, in the alternative, to stay the action 

thereunder.

26

 In that motion, RGI sought to dismiss Amended Complaint Counts I 

20 Id. at 6-7; SAC ¶ 10.

21 Def.’s Super. MTD at 7; SAC ¶¶ 10-11.

22 See Defendant’s First Motion to Dismiss, July 8, 2020 (D.I. 11 Super.).

23 See Defendant’s Am. First Motion to Dismiss or Stay, Aug. 7, 2020 (D.I. 28 Super.).

24 See SAC ¶¶ 62-87.

25 Id. ¶ 87.

26 See Defendant’s Second Motion to Dismiss or Stay, Oct. 15, 2020 (D.I. 46 Super.).
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and II under Rule 12(b)(6), dismiss the portions of Counts I and III relating to the 

Servicing Agreement and Participation Agreement for improper venue, and dismiss 

or stay the entire action under the doctrine of forum non conveniens.

27

 

In April 2021, the Court issued a decision denying RGI’s motion in full.28 The 

following is a brief summary of that decision. The Court found the UAPA’s forum 

selection clause applies and the parties waived any objection to an inconvenient 

forum.29 This was in response to RGI’s argument that the Ancillary Agreements’ 

forum selection clause chose New York, so any non-UAPA claims must be litigated 

there.30 But, the Court found the UAPA was later-executed and its Delaware forum 

selection clause governed.31 The Court also found that Counts I and II survived 

RGI’s timeliness challenges.32 Shortly thereafter, the Court denied RGI’s motion 

for reargument.33

In June 2021, RGI filed its Answer with Affirmative Defenses and 

27 See id. at 11-35.

28 See CRE Niagara Hldgs., LLC, 2021 WL 1292792.

29 See id. at *11.

30 See id. at *4.

31 Id. at *5-7.

32 See id. at *10.

33 CRE Niagara Hldgs., LLC v. Resort Groups, Inc., LLC, 2021 WL 2110769 (Del. Super. Ct. 

May 25, 2021).
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Counterclaims, and a Third-Party Complaint.34 In September 2021, RGI amended 

this filing as it relates to the Counterclaims.35 Also in September 2021, CRE and the 

Third-Party Defendants filed two motions to dismiss RGI’s Third-Party 

Complaint.36 In February 2022, RGI filed a renewed motion to stay the non-UAPA 

claims in the Superior Court action in light of related litigation in New York state 

court.37 In May 2022, the Court issued a Letter Order resolving the above-mentioned 

motions.38 The Court held in pertinent part that RGI’s breach-of-contract claim 

under the UAPA survived dismissal,39 but its claims under the Servicing Agreement 

and Participation Agreement were dismissed with prejudice based on RGI’s 

representations to the Court.40 Namely, RGI maintained its non-UAPA claims 

should be litigated in New York in compliance with those agreements’ forum 

selection clauses, and that RGI proffered them in the Superior Court action only to 

preserve the claims in the event they were thrown out in New York.41 The Court 

34 See Defendant’s Answer with Affirmative Defenses and Counterclaims and Third-Party 

Complaint, June 9, 2021 (D.I. 81 Super.). The Third-Party Complaint is not highly relevant for 

the purposes of the current motions, so it will not be discussed in detail.

35 See Defendant’s Answer with Affirmative Defenses and Amended Counterclaims and ThirdParty Complaint, Sept. 1, 2021 (D.I. 92 Super.).

36 See D.I. 95 Super.; D.I. 96 Super.

37 See Defendant’s Renewed Motion to Stay, Feb. 4, 2022 (D.I. 126 Super.).

38 See CRE Niagara Hldgs., LLC, 2022 WL 1749181.

39 See id. at *5.

40 See id.

41 See id. at *9.
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noted that the New York Supreme Court held the non-UAPA claims belong in New 

York, and the Court dismissed RGI’s non-UAPA claims with prejudice.42 

Additionally, the Court denied RGI’s motion to stay its non-UAPA claims.43 In July

2022, CRE filed its Answer to RGI’s Amended Counterclaim.44

D. NEW YORK COURT PROCEDURAL HISTORY

On August 12, 2020, a day after the United States District Court for the 

Southern District of New York dismissed RGI’s non-UAPA claims, RGI filed its 

complaint in the Supreme Court of New York (the “New York Action”).45 That 

complaint asserts claims against CRE for, inter alia, breach of the Servicing 

Agreement and Participation Agreement.46 In February 2021, RGI amended its 

complaint in the New York Action47 and asserted claims against CRE (and others) 

for, inter alia, breach of the Servicing Agreement, the Participation Agreement, the 

UAPA, and the Supplemental Agreement.48 In December 2021, the New York 

Supreme Court issued a decision on CRE’s (and other defendants’) motion to 

42 See id. at *9-10.

43 See id. at *10.

44 See Plaintiff/Counterclaim Defendants’ Answer to Amended Counterclaim, July 12, 2022 (D.I. 

146 Super.).

45 See Def.’s Super. MTD at 7.

46 See id.

47 See id. at 7, Ex. 7 (displaying a copy of RGI’s amended complaint in the New York Action).

48 See id., Ex. 7 ¶¶ 283-332.
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dismiss the New York Action.

49

 The New York court dismissed RGI’s claims 

against CRE under the UAPA because of “the broad Delaware forum selection 

clause contained in that agreement.”50 The New York court did not dismiss the

Servicing Agreement and Participation Agreement claims because those agreements 

“contain broad mandatory New York forum selection clauses applicable to all claims 

related to these agreements.”51

E. Court of Chancery Procedural History

On November 5, 2021, CRE filed its complaint in the Court of Chancery, 

asserting claims against RGI for specific performance under the Servicing 

Agreement and Participation Agreement, and anticipatory repudiation.52 

Simultaneously, CRE submitted a motion for entry of a status quo order for the 

purpose of “prohibiting [RGI] from unilaterally dispersing disputed funds to itself 

in the very near future.”53 RGI opposed the motion.

54

 The Court granted CRE’s 

49 See Letter for Judicial Review, Ex. A (“New York Action Dec. 27 Decision”), Dec. 30, 2021 

(D.I. 109 Super.).

50 Id., Ex. A at 2.

51 Id., Ex. A at 3. The New York Court also made other findings with respect to RGI’s other 

claims, but those are not particularly relevant for the present motions here. See generally id., Ex. 

A. On February 28, 2023, the Supreme Court of New York, Appellate Division affirmed the New 

York Action Dec. 27 Decision in full. See Letter for Judicial Review, Ex., Mar. 1, 2023 (D.I. 177

Super.).

52 See Verified Complaint, ¶¶ 32-51, Nov. 5, 2021 (D.I. 1 Ch.).

53 See Plaintiffs’ Motion for Entry of a Status Quo Order at 1, Nov. 5, 2021 (D.I. 1 Ch.).

54 See Defendant’s Opposition to the Motion for Entry of a Status Quo Order, Mar. 8, 2022 (D.I. 

19 Ch.).
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motion for entry of a status quo order.55 Later, CRE filed its current Amended 

Complaint in the Court of Chancery action, asserting five claims: specific 

performance (Count I), anticipatory repudiation (Count II), declaratory judgment 

regarding UAPA § 8.5(a) (Count III), declaratory judgment regarding UAPA § 8.7 

(Count IV), and breach of the UAPA (Count V).56

F. Current Superior Court and Chancery Motions

RGI filed its current Motion to Dismiss for Lack of Subject Matter Jurisdiction 

and for Partial Judgment on the Pleadings (the “Superior Court Motion to Dismiss”), 

relating to CRE’s declaratory judgment claim (Count III).57 

Between the Opposition and Reply filings, CRE sent a letter to the Court 

regarding “material development[s]” in the New York Action.58 The letter stated 

that RGI filed an “emergency motion” in the New York Action, seeking to enjoin 

CRE from further pursuing: “(1) parts of the [Superior Court] Action . . . ; (2) [the 

Court of Chancery] Action Counts I-II . . . , and Counts III-IV . . . ; and (3) CRE’s 

motion for summary judgment on [the Court of Chancery] Action Counts III-IV.”59 

55 See Order Governing Accounting & Resolving Status Quo Motion, Apr. 28, 2022 (D.I. 32 Ch.) 

(granting CRE’s Motion).

56 See CAC ¶¶ 45-85.

57 See Def.’s Super. MTD.

58 See Letter for Judicial Review (“New York Action Development Letter”) at 1, Sept. 30, 2022 

(D.I. 166 Super.).

59 Id.
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In September 2022, the New York Supreme Court submitted an order for CRE to 

show cause why the New York Supreme Court should not enjoin CRE from pursuing 

claims in Delaware for the claims that are related to the agreements with New York 

forum selection clauses.60

In November 2022, CRE sent a follow-up letter to the Court.61 The letter 

stated the New York Supreme Court denied RGI’s motion to enjoin CRE.62 The 

New York Supreme Court’s Order stated that court would not issue the anti-suit 

injunction RGI requested.63 The New York Supreme Court’s reasoning was 

primarily premised on the fact that this (Delaware) Court has “extensive knowledge” 

of the complex issues of this litigation and has been mindful of the impact of the 

overlapping claims.64 The New York Supreme Court also criticized the parties for 

the “poor [contract] drafting decisions that resulted in multi-forum litigation.”65 In 

essence, the New York Supreme Court deferred to this Court to decide the merits of 

the issues in the first instance.66

60 See id., Ex. B (displaying a copy of the New York Supreme Court’s Order).

61 See Letter for Judicial Review (“New York Action Development Letter Update”), Nov. 17, 

2022 (D.I. 170 Super.).

62 Id., Ex. at 1.

63 Id., Ex. at 1.

64 Id., Ex. at 1.

65 Id., Ex. at 2.

66 Id., Ex. at 2.
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Concerning the Court of Chancery action, RGI filed its Motion to Dismiss the 

Amended Complaint (the “Chancery Motion to Dismiss”),67 seeking to dismiss the 

Amended Complaint in full.

68

 CRE filed its Opposition to the Chancery Motion to 

Dismiss.69 Contemporaneously, CRE filed its Motion for Summary Judgment on 

Counts III and IV (the “Chancery Motion for Summary Judgment”).70 

II. LEGAL STANDARD

A. SUBJECT MATTER JURISDICTION UNDER SUPERIOR COURT RULE 12(b)(1)

“A party may move to dismiss under Rule 12(b)(1) for lack of subject matter 

jurisdiction.”71 “Whenever it appears by suggestion of the parties or otherwise that 

the Court lacks jurisdiction of the subject matter, the Court shall dismiss the 

action.”72 When the Court considers a Rule 12(b)(1) motion, “the Court need not 

accept [a plaintiff’s] factual allegations as true and is free to consider facts not 

alleged in the complaint.”73 “The movant ‘need only show that the Court lacks 

67 See Defendant’s Motion to Dismiss (“Def.’s Ch. MTD”), Aug. 15, 2022 (D.I. 39 Ch.).

68 See id. at 15-38.

69 See Plaintiffs’ Answering Brief (“Pls.’ Ch. Answering Br.”), Sept. 22, 2022 (D.I. 43 Ch.).

70 See Plaintiffs’ Motion for Summary Judgment (“Pls.’ Mot. for Summ. J.”), Sept. 22, 2022 (D.I. 

43 Ch.). Plaintiffs filed one, omnibus brief for their Opposition to Defendant’s Chancery Motion 

to Dismiss and their Opening Brief in support of their Chancery Motion for Summary Judgment.

71 Blue Cube Spinco LLC v. Dow Chem. Co., 2021 WL 4453460, at *5 (Del. Super. Ct. Sept. 29, 

2021) (citing Del. Super. Ct. Civ. R. 12(b)(1)).

72 Del. Super. Ct. Civ. R. 12(h)(3); see also Blue Cube Spinco LLC, 2021 WL 4453460, at *5.

73 Appriva S’holder Litig. Co., LLC v. EV3, Inc., 937 A.2d 1275, 1284 n.14 (Del. 2007) (internal 

quotation marks and citation omitted); Nelson v. Russo, 844 A.2d 301, 302 (Del. 2004) (“In 
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jurisdiction,’”74 but “the non-movant bears the ‘far more demanding’ burden ‘to 

prove jurisdiction exists.’”75 “A motion to dismiss challenging jurisdiction of the 

subject matter based on lack of ripeness is properly considered under Rule 

12(b)(1).”76

B. JUDGMENT ON THE PLEADINGS UNDER SUPERIOR COURT RULE 12(c)

When a party moves under Rule 12(c) for judgment on the pleadings, “the 

Court accepts the truth of all well-pleaded facts and draws all reasonable factual 

inferences in favor of the non-movant.”77 The Court will grant a 12(c) motion only 

when, after drawing all reasonable inferences in favor of the non-moving party, “no 

material factual dispute exists and the movant is entitled to judgment as a matter of 

law.”78

“The standard for a motion for judgment on the pleadings is almost identical 

deciding whether the Superior Court has subject matter jurisdiction . . . [the Court] must look 

beyond the language in the complaint.”).

74 Blue Cube Spinco LLC, 2021 WL 4453460, at *5 (quoting Airbase Carpet Mart, Inc. v. AYA 

Assocs., Inc., 2015 WL 9302894, at *2 (Del. Super. Ct. Dec. 15, 2015), aff’d, 2016 WL 4938890 

(Del. Sept. 16, 2016)).

75 Id. (quoting Appriva, 937 A.2d at 1284 n.14 (internal quotation marks omitted)).

76 Benefytt Techs., Inc. v. Capitol Specialty Ins. Corp., 2022 WL 16504, at *5 (Del. Super. Ct. 

Jan. 3, 2022) (citing Energy Transfer Equity, L.P. v. Twin City Fire Ins. Co., 2020 WL 5758027, 

at *5 (Del. Super. Ct. Sept. 28, 2020)); B/E Aerospace, Inc. v. J.A. Reinhardt Hldgs., LLC, 2020 

WL 4195762, at *2 (Del. Super. Ct. July 21, 2020)).

77 Intermec IP Corp. v. TransCore, LP, 2021 WL 3620435, at *8 (Del. Super. Ct. Aug. 16, 2021) 

(citing Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund II, L.P., 624 A.2d 1199, 

1205 (Del. 1993)).

78 Id. (citing Del. Super. Ct. Civ. R. 12(c)).
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to the standard for a motion to dismiss.”79 The Court thus accords a plaintiff 

opposing a Rule 12(c) motion the same benefits as a plaintiff opposing a Rule 

12(b)(6) motion.80 Given the similarity between a 12(c) motion and a 12(b)(6) 

motion, “the Court engages certain 12(b)(6) procedures during 12(c) review,”81 such 

as considering “documents outside the pleadings”82 that are “integral to and 

incorporated referentially into them.”83

III. PARTIES’ CONTENTIONS

A. SUPERIOR COURT ACTION CONTENTIONS

RGI contends that CRE’s declaratory judgment claim (Count III) should be 

dismissed to the extent Count III concerns the Ancillary Agreements and the 

Supplemental Agreement.84 RGI offers two primary reasons for its contention. 

First, RGI claims that litigating Count III in this Court is “unnecessary” and would 

result in “duplicative litigation and risk inconsistent judgments.”85 Specifically, RGI 

79 Silver Lake Off. Plaza, LLC v. Lanard & Axilbund, Inc., 2014 WL 595378, at *6 (Del. Super. 

Ct. Jan. 17, 2014) (internal quotation marks and citation omitted).

80 Intermec IP Corp., 2021 WL 3620435, at * 8 (citing Alcoa World Alumina LLC v. Glencore 

Ltd., 2016 WL 521193, at * 6 (Del. Super. Ct. Feb. 8, 2016), aff’d sub nom., Glencore Ltd. v. St. 

Croix Alumina, LLC, 2016 WL 6575167 (Del. Nov. 4, 2016)).

81 Id.

82 Id. (citing Jiménez v. Palacios, 250 A.3d 814, 827 (Del. Ch. 2019), aff’d, 2020 WL 4207625 

(Del. July 22, 2020)).

83 Id. (citing McMillan v. Intercargo Corp., 768 A.2d 492, 500 (Del. Ch. 2000)).

84 See Def.’s Super. MTD at 11.

85 See id.
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argues that CRE’s Count III, as it relates to the Ancillary Agreements and the 

Supplemental Agreement, mirrors RGI’s affirmative claims in New York and, thus, 

litigating Count III here would risk inconsistent judgments and present 

overwhelming hardship.86 Second, RGI claims that Count III should be dismissed 

as overripe because there is a “simultaneous non-declaratory judgment action” 

pending in New York.87 RGI invokes the Superior Court’s seven-factorsfrom Burris 

v. Cross,

88 and also relies on the Court of Chancery’s decision in Markusic v. Blum.89

 

RGI claims that in light of these cases, Count III should be dismissed as overripe.

On the other side, CRE argues its declaratory judgment claim is proper in this 

Court.90 CRE’s attack on RGI’s assertions is twofold. First, CRE argues that 

litigating Count III here is proper under the “law of the case” doctrine.91 

Specifically, CRE claims the Court previously held Count III was properly filed in 

Delaware due to the language in UAPA Section 9.6.92 Second, CRE argues RGI’s 

“overripeness” argument fails because Count III “is the only claim related to the 

86 See id. at 13.

87 Id. at 14.

88 583 A.2d 1364 (Del. Super. Ct. 1990).

89 2021 WL 2456637 (Del. Ch. June 16, 2021); see Def.’s Super. MTD at 14-21.

90 See Plaintiffs’ Answering Brief (“Pls.’ Super. Answering Br.”) at 8, Sept. 22, 2022 (D.I. 164 

Super.).

91 See id.

92 See id. at 8-9 (citation omitted)
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[Ancillary Agreements] that is filed in the correct forum based on the plain language 

of the UAPA.”93 Additionally, CRE argues Burris does not apply, and even if it did, 

the seven factors weigh in CRE’s favor.94

B. COURT OF CHANCERY ACTION CONTENTIONS 

In the Chancery Amended Complaint, CRE’s Count I seeks “specific 

performance directing RGI to abide by its contractual commitments under the 

Servicing Agreement and Participation Agreement” and to pay CRE funds from the 

Lockbox.95 In Count II, CRE claims that RGI anticipatorily repudiated the Servicing 

Agreement and Participation Agreement and asks for an injunction “prohibiting RGI 

from disbursing funds from the Lockbox account to itself until Plaintiffs’ offset 

rights are established.”96 In Count III, CRE seeks a declaration that UAPA Section 

8.5(a) limits liability via an indemnification cap.97 In Count IV, CRE seeks a 

declaration that UAPA Section 8.7 limits the types of claims that can be brought by 

RGI.98 And in Count V, CRE alleges RGI breached the UAPA by filing the New 

93 See id. at 14.

94 See id. at 14-20.

95 CAC ¶¶ 45-55; see also id. ¶ 3 (noting that the Servicing Agreement defines the parameter of 

the Lockbox Account). 

96 Id. ¶¶ 56-64. 

97 Id. ¶¶ 65-70. 

98 Id. ¶¶ 71-76. 
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York Action.99

RGI moved to dismiss the Amended Complaint under Court of Chancery 

Rules 12(b)(1) and 12(b)(6).100 Broadly, RGI argues “[t]he legal and factual issues 

in Counts I-IV are before the New York court, which ruled it had exclusive 

jurisdiction over such claims.”101 RGI makes a series of global arguments as applied 

to all counts. First, RGI claims that McWane compels the Court to dismiss or stay 

this action.102 Second, RGI argues CRE is collaterally estopped from “attacking the 

New York court’s ruling by arguing that the UAPA, or at minimum, Delaware law, 

applies to RGI’s indemnification claims” because the New York court found the 

UAPA does not govern the Servicing Agreement or Participation Agreement.103 

Third, RGI argues the claims do not sound in equity and therefore the Court of 

Chancery lacks subject matter jurisdiction.104

IV. DISCUSSION

A. RGI’S SUPERIOR COURT RULE 12(b)(1) ARGUMENT FAILS.

RGI believes Count III, as it relates to the Ancillary Agreements and the 

99 Id. ¶¶ 77-85.

100 Def.’s Ch. MTD at 1.

101 Id. at 17. 

102 Id. at 19-20. 

103 Id. at 21-22. 

104 Id. at 23.
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Supplemental Agreement, should be dismissed under Rule 12(b)(1). RGI asserts 

dismissal is warranted because the Ancillary Agreements’ forum selection clause 

states New York is the proper forum for claims under those agreements. RGI 

contends allowing CRE to litigate non-UAPA claims in Delaware runs the risk of 

duplicative litigation and inconsistent judgments. CRE relies on the “law of the 

case” doctrine in light of this Court’s previous determination that the broad language 

of UAPA Section 9.6 permits the non-UAPA claims to be heard in this Court.

The law of the case doctrine is a “judicially-created doctrine that prevents 

parties from relitigating issues[s] that previously have been decided.”105 Under this 

doctrine, “a court’s legal ruling at an earlier stage of proceedings controls later stages 

of those proceedings, provided the facts underlying the ruling do not change.”106 

“Once a matter has been addressed in a procedurally appropriate way by a court, it 

is generally held to be the law of that case and will not be disturbed by that court 

unless [a] compelling reason to do so appears.”107 The law of the case doctrine “is 

not inflexible in that, unlike res judicata, it is not an absolute bar to reconsideration 

of a prior decision that is clearly wrong, produces an injustice[,] or should be 

105 Zurich Am. Ins. Co. v. Syngenta Crop Protection LLC, 2022 WL 4091260, at *3 (Del. Super. 

Ct. Aug. 24, 2022).

106 Nationwide Emerging Managers, LLC v. Northpointe Hldgs., LLC, 112 A.3d 878, 894-95 (Del. 

2015) (citation omitted).

107 Zirn v. VLI Corp., 1994 WL 548938, at *2 (Del. Ch. Sept. 23, 1994); see also Bragdon v. 

Bayshore Prop. Owners Ass’n, Inc., 251 A.3d 661, 677 (Del. Ch. 2021) (citing Zirn, 1994 WL 

548938, at *2).
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revisited because of changed circumstances.”108 “This Court has held: ‘A party 

seeking to have the Court reconsider the earlier ruling must demonstrate newly 

discovered evidence, a change of law, or manifest injustice.’”109

In April 2021, the Court issued its first of two decisions in this matter. In the 

April 2021 decision, the Court analyzed the competing forum selection clauses of 

the UAPA—with a Delaware forum selection clause—and the Ancillary 

Agreements—with their New York forum selection clauses.110 The Court held that 

the UAPA’s Delaware forum selection clause governed disputes arising from the 

UAPA and the Ancillary Agreements for two reasons. First, RGI conceded “CRE’s 

affirmative claims are based on an alleged breach of representations and warranties 

set forth in the UAPA.”111 Second, the UAPA is the later-executed document, and 

UAPA Section 9.6’s “plain language itself includes the Ancillary Agreements within 

its forum selection clause.”112 The Court, therefore, held Delaware was the proper 

forum for CRE’s claims.113

In May 2022, the Court issued its second decision and dismissed RGI’s non108 Hamilton v. State, 831 A.2d 881, 887 (Del. 2003) (emphasis in original) (internal quotation 

marks and citations omitted).

109 Zurich Am. Ins. Co., 2022 WL 4091260, at *3 (quoting E.I du Pont de Nemours & Co. v. 

Admiral Ins. Co., 711 A.2d 45, 55 (Del. Super. Ct. 1995)).

110 See CRE Niagara Hldgs., LLC, 2021 WL 1292792, at *5-7.

111 See id. at *6.

112 See id. at *7.

113 See id.
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UAPA claims with prejudice.114 The Court never reached CRE’s Rule 12(b)(6) 

arguments on RGI’s non-UAPA claims because “RGI’s own representations to this 

Court [were] sufficient to bar each claim.”115 Namely, RGI represented that it filed 

non-UAPA claims in this Court, even though it believed those claims belonged in 

New York, just in case the New York court dismissed them.

116

 The Court noted the 

New York court agreed RGI’s non-UAPA claims must be litigated in New York,117

and then the Court held RGI to its representations and dismissed RGI’s non-UAPA 

claims based on those representations.118

Here, RGI argues “if anything, CRE’s argument is barred by the law of the 

case” in light of the Court’s May 2022 decision.119 RGI’s reasoning is that the 

necessary inference to be drawn from that decision is RGI’s claims were dismissed 

to avoid duplicative litigation and inconsistent judgments.120 Not so. Rather, the 

Court dismissed RGI’s non-UAPA claims based on RGI’s representations that it 

filed those claims in Delaware only as a safety net if the New York court dismissed 

114 See CRE Niagara Hldgs., LLC, 2022 WL 1749181, at *9-10.

115 See id. at *9.

116 See id.

117 See id.

118 See id. at *10.

119 Defendant’s Reply Brief (“Def.’s Super. Reply”) at 8-9, Oct. 13, 2022 (D.I. 167 Super.).

120 Id. at 9.
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RGI’s non-UAPA claims in New York.121 It does not follow that CRE’s non-UAPA 

claims must be dismissed under Rule 12(b)(1) based on the law of the case. Indeed, 

the opposite is true—the Court previously held Delaware is the proper forum for 

certain non-UAPA claims because (1) RGI conceded CRE’s affirmative claims are 

based on breaches set forth in the UAPA, and (2) UAPA Section 9.6 encompassed 

certain claims under the Ancillary Agreements.122

Additionally, there has been no “newly discovered evidence, a change of law, 

or manifest injustice” since the Court issued its two previous decisions. Any 

perceived injustice derives solely from the parties’ own tactical decisions and 

representations, not from any of the multiple courts that have dealt with this morass. 

Any risk of “duplicative litigation” or “inconsistent judgments” is a result of the 

parties’ tactical decisions, which have already unnecessarily burdened multiple 

courts. The New York Supreme Court said it best in denying RGI’s request for an 

anti-suit injunction: “While it would have made more sense for the parties to 

expressly bargain to only litigate in one court (and equal sense to pick one now), 

they have only themselves to blame for their poor drafting decisions that resulted in 

121 See CRE Niagara Hldgs., LLC, 2022 WL 1749181, at *9 (“The Court need not reach CRE’s 

arguments that [RGI’s non-UAPA] claims fail on their merits, as advanced in its 12(b)(6) Motion. 

Instead, RGI’s own representations to this Court are sufficient to bar each claim.”); see also id. at 

*10 (“RGI represented that it filed its Amended Counterclaims and Third-Party Complaint just in 

case the New York court determined those claims belong in Delaware. The New York court 

didn’t.”).

122 See CRE Niagara Hldgs., LLC, 2021 WL 1292792, at *6-7. 
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multi-forum litigation.”123

Simply put, if anything, the law of the case dictates that CRE’s Count III is 

properly in Delaware. RGI’s Motion to Dismiss for Lack of Subject Matter 

Jurisdiction is DENIED.

B. RGI’S SUPERIOR COURT RULE 12(c) ARGUMENT FAILS.

RGI’s next basis to dismiss Count III is that it’s “overripe.”124 RGI argues 

Count III is overripe because RGI pleaded an affirmative, non-declaratory claim in 

New York, which makes CRE’s Count III overripe under Burris and Markusic.

125

 

RGI argues that the seven-factors set out in Burris control, and when the Court 

analyzes these factors, judgment in RGI’s favor is proper.126 CRE counters that the 

overripeness argument fails because Count III still serves a practical and useful 

purpose especially when it’s the only claim related to the Ancillary Agreements in 

this Court.127 CRE believes Burris is inapposite for several reasons,128 and that even 

if Burris applies, the factors weigh in favor of denying RGI’s Motion.129

As an initial matter, the term “overripe” as used in this context appears in only 

123 New York Action Development Letter Update, Ex. at 2.

124 See Def.’s Super. MTD at 14.

125 See id. at 14-15; Def.’s Super. Reply at 12-13.

126 See Def.’s Super. MTD at 15-21.

127 See Pls.’ Super. Answering Br. at 13-14.

128 See id. at 14-17.

129 See id. at 17-20.
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six Delaware cases: Burris, both previously-published decisions in this case, 

Markusic, and two other Superior Court cases. Put differently, there aren’t many 

decisions discussing this doctrine.

“The basic purpose of the Declaratory Judgment Act is to enable the court to 

adjudicate a controversy prior to the time when a remedy is traditionally available 

and, thus, to advance to [a] stage at which a matter is traditionally justiciable.”130 A 

declaratory judgment is intended to “promote preventive justice,”131 but it’s not “a 

means of eliciting advisory opinions from courts.”132 The Court has discretion to 

grant or deny a declaratory judgment,133 but the Court cannot exercise this discretion 

unless there is an “actual controversy.”134 An actual controversy exists if all of the 

following elements are met:

(1) It must be a controversy involving the rights or other legal relations 

of the party seeking declaratory relief; (2) it must be a controversy in 

which the claim of right or other legal interest is asserted against one 

who has an interest in contesting the claim; (3) the controversy must be 

between the parties whose interests are real and adverse; [and] (4) the 

issue involved in the controversy must be ripe for judicial 

130 Diebold Comput. Leasing, Inc. v. Com. Credit Corp., 267 A.2d 586, 591-92 (Del. 1970)

(citation omitted); see also DEL. CODE ANN. tit. 10, § 6501 (2023).

131 Stabler v. Ramsay, 88 A.2d 546, 551 (Del. 1952), adhered to on reh’g, 89 A.2d 544 (Del. 

1952).

132 Ackerman v. Stemerman, 201 A.2d 173, 175 (Del. 1964) (citing Stabler).

133 See DEL. CODE ANN. tit. 10, § 6506 (2023); Sec. Nat’l Mortg. Co. v. Lehman Brothers Hldgs. 

Inc., 2016 WL 6396343, at *6 (Del. Super. Ct. Aug. 24, 2016).

134 See Gannett Co., Inc. v. Bd. of Managers of the Delaware Criminal Justice Info. Sys., 840 A.2d 

1232, 1237 (Del. 2003); XL Specialty Ins. Co. v. WMI Liquidating Tr., 93 A.3d 1208, 1216-17 

(Del. 2014).
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determination.135

Here, the parties don’t really contest the first three elements. Instead, the 

fourth element—ripeness, or to be more exact, overripeness—is at issue. 

RGI asks the Court to dismiss Count III as overripe citing Markusic and

Burris. RGI tells the Court that it need not engage in the longer Burris analysis 

because Markusic states: “The court need not engage in the [Burris] analysis . . . . 

Where non-declaratory claims are pending in another court, the declaratory version 

of those same claims are overripe and risk the unnecessary burdening on the court’s 

resources and possibility of inconsistent factual and legal findings between the 

courts.”136 While Markusic was recently affirmed by the Delaware Supreme 

Court,137 the Court here would be remiss if it rested its decision on Markusic without 

engaging in the Burris analysis.

The Superior Court in Burris set out seven factors to consider whether a claim 

should be dismissed as overripe:

1. Whether the defendant is truly an unwilling litigant, thus 

necessitating declaratory action.

2. What form of relief is truly being sought by the plaintiff and 

whether that relief, if not solely a declaration of rights, would 

require resort to another court for supplemental relief. If so, 

135 Rollins Int’l, Inc. v. Int’l Hydronics Corp., 303 A.2d 660, 662-63 (Del. 1973).

136 See Markusic, 2021 WL 2456637, at *5; Def.’s Super. MTD at 14-15.

137 Markusic v. Blum, 2022 WL 4451486 (Del. Sept. 23, 2022) (affirming the Court of Chancery’s

decision without a separate opinion).
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whether both the rights and relief could be attained in a single nondeclaratory action already available.

3. Whether another remedy exists and whether it would be more 

effective or efficient and, thus, whether declaratory judgment 

would serve a useful purpose.

4. Whether another action is pending, instituted either before or after 

the instant action, at the time of consideration of the Motion to 

Dismiss, and whether plaintiff would be able to raise all claims and 

defenses available in the instant action, as part of the pending 

action.

5. Whether the instant action has truly been instituted to seek a 

declaration of rights or merely for tactical or other procedural 

advantage.

6. Whether the instant action was filed in apparent anticipation of 

other pending proceedings.

7. Whether plaintiff will suffer any prejudice if the instant action is 

dismissed.138

Application of the Burris factors is appropriate here. In E.I. Dupont De 

Nemours & Co. v. Huttig Building Products,

139 the Superior Court declined to 

engage in the Burris analysis because it determined the defendant effectively “cast 

a cloud” upon the contract at issue by filing a second action in California a month 

after the Delaware action was instituted.140 On the other hand, in Security National 

138 Burris, 583 A.2d at 1372-73.

139 2002 WL 32072447 (Del. Super. Ct. May 28, 2002).

140 See id. at *4-5.
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Mortgage Company v. Lehman Brothers Holdings Inc.,

141 the Court engaged in the 

Burris analysis.142 There, this Court determined “the parties ha[d] moved far 

forward to litigate the claim” because they were actively pursuing litigation in the 

United States Bankruptcy Court for the Southern District of New York.143 The 

present case is more like Lehman Brothers than Huttig Building Products because 

RGI is actively pursuing similar claims in New York, which were originally filed 

less than one day after CRE initiated this action.144 As such, it’s proper to engage in 

the Burris analysis.

145

Factor One: RGI is a willing litigant.

RGI is a willing litigant. RGI initially brought an action in the Southern 

District of New York within a day of the filing of this action. Though later dismissed 

for lack of diversity, RGI proceeded with the New York Action shortly thereafter in 

state court. Further, on March 30, 2020, less than two months before the lawsuits 

started, RGI sent a default notice to CRE, suggesting that CRE “preserve documents 

141 2016 WL 6396343 (Del. Super Ct. Aug. 24, 2016).

142 See id. at *8-11.

143 Id. at *8.

144 See Declaration of Paul Burgo ¶ 2, Aug. 15, 2022 (D.I. 156 Super.) (“On May 18, 2020, RGI 

filed a complaint in the United States District Court for the Southern District of New York, 

asserting claims for breach of contract under the Servicing, Participation, and Supplemental 

Agreements.”); see also Compl. (having a filing date of May 18, 2020).

145 See Sec. Nat’l Mortg. Co., 2016 WL 6396343, at *8.
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in view of potential litigation.”146 CRE argues RGI is “active” but “unwilling” 

because RGI does not want to litigate in Delaware.147 That misses the point. This 

factor asks whether the party is a willing litigant as it relates to the causes of action 

generally, not in a specific court.148

Factor Two: CRE is seeking declaratory relief under Count III.

Count III seeks a declaration that: 

[T]here is no subsisting claim by RGI for any default of [sic] breach by 

any Plaintiff of the UAPA, the Servicing and/or Participation 

Agreement. This includes a declaratory judgment that there is no 

default or breach as asserted by RGI . . . and that Club Exploria (as 

successor by merger to CRE Bushkill) is entitled to terminate the 

Servicing Agreement and/or is not restricted or obligated by Schedule 

2.149

The relief sought by CRE here could also be sought in the New York Action 

because RGI has advanced affirmative claims that CRE (and others) breached the 

UAPA, Ancillary Agreements, and Supplemental Agreement.150 The Court 

previously held, however, that Delaware is the proper forum for this lawsuit because 

146 SAC, Ex. I at 4.

147 See Pls.’ Super. Answering Br. at 17.

148 See Burris, 583 A.2d at 1373 (explaining the defendant was a willing litigant because it was 

actively pursuing a lawsuit in the Court of Chancery); Sec. Nat’l Mortg. Co., 2016 WL 6396343, 

at *8 (explaining the defendant was a willing litigant because it was actively pursuing claims in 

the United States Bankruptcy Court for the Southern District of New York).

149 SAC ¶ 87.

150 See Def.’s Super. MTD, Ex. 7 ¶¶ 283-332 (asserting claims by RGI against CRE for breach of 

these agreements).
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the UAPA’s Delaware forum selection clause governs the UAPA and the Ancillary 

Agreements.151 So, while it is plausible CRE could seek the same relief in the New 

York Action, the law of the case holds “[t]his Court is the proper forum for CRE’s 

suit.”152 There is an affirmative claim in New York that mirrors the declaratory 

judgment action here, but the Court has already held that this Court is the proper 

forum for CRE’s lawsuit, which includes the declaratory judgment action. Therefore 

this factor is neutral. 

Factors Three and Four: CRE’s Count III claim may serve a useful 

purpose, but CRE could likely raise its claims and/or defenses in the New 

York Action.

Considering the Court’s prior decision, Count III serves a useful purpose 

inasmuch as it permits CRE to pursue its claims under the UAPA and Ancillary 

Agreements in accordance with the Court’s holding that Delaware is the proper 

forum for CRE’s suit. On this ground, factor three favors CRE.

CRE argues the New York court determined the UAPA is governed by a 

Delaware forum selection clause, and thus CRE would not be able to raise all claims 

and defenses available in the New York Action.153 But this assertion appears 

conclusory, as RGI points out—“CRE [] fails to explain what defenses from the 

151 See CRE Niagara Hldgs., LLC, 2021 WL 1292792, at *6-8.

152 See id. at *7.

153 See Pls.’ Super. Answering Br. at 19.
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UAPA it could possibly rely on in litigating its claims that it did not breach the 

[Ancillary] Agreements, nor does it explain why it would be unable to assert them 

defensively in New York.”154 Because CRE has yet to provide an adequate 

explanation as to why it wouldn’t be able to raise the appropriate claims or defenses 

in the New York Action, factor four favors RGI.

Factors Five and Six: This action may have been initiated to seek a 

declaration of rights, but it may also have been filed in anticipation of the 

New York Action.

CRE claims, and the Court must accept at this stage, it filed this action in 

accordance with the UAPA’s forum selection clause.155 RGI paints a different 

picture. RGI says CRE filed this action for tactical advantage shortly after RGI sent 

CRE notices of default on the Ancillary Agreements. RGI points to CRE’s Motion 

for Summary Judgment in the Chancery action and says CRE believes Delaware law 

on indemnification and willful misconduct is more advantageous.156 But, if 

anything, that argument goes to the Chancery action and RGI fails to directly connect 

it to the Superior Court action. The argument, therefore, is not persuasive and factor 

five favors CRE.

RGI claims it is the “natural plaintiff” and CRE filed this action in anticipation 

154 Def.’s Super. Reply at 15.

155 See Pls.’ Super. Answering Br. at 19.

156 See Def.’s Super. Reply at 16 (citing Pls.’ Ch. Answering Br. at 20-21).
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of the New York Action. RGI points to certain caselaw for the proposition that 

“[s]eeking a declaratory judgment prior to the natural plaintiff bringing an action can 

be viewed as ‘filing in anticipation’ of litigation.”157 RGI says it’s the natural 

plaintiff because CRE’s damages, at most, make up a “small offset of RGI’s much 

larger damages.”158 CRE argues this action was not anticipatorily filed because, in 

its view, it had to file or it would have faced a “timeliness” challenge under the 

agreements if it did not file.159 It does appear CRE filed this action in anticipation 

of litigation based on the “natural plaintiff” argument by RGI, as well as the fact that

RGI’s damages, if proven, are significantly greater than CRE’s damages.160 For 

these reasons, factor six favors RGI.

Factor Seven: CRE would be prejudiced if this action is dismissed. 

RGI argues CRE will suffer no prejudice if the non-UAPA portions of Count 

III are dismissed because CRE can pursue those in the New York Action.161 In 

briefing and at argument, CRE countered that it would suffer prejudice if Count III 

was dismissed because the New York Action’s decision was on appeal to the New 

157 See Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Turner Constr. Co., 2014 WL 703808, at *4 

(Del. Super. Ct. Feb. 17, 2014).

158 See Def.’s Super. Reply at 16-17.

159 See Pls.’ Super. Answering Br. at 19-20; see also Def.’s Super. Reply at 16 n.13 (noting the 

UAPA timeliness limitations period expired a year before CRE filed in Delaware).

160 See Def.’s Super. Reply at 17 n.16 (explaining the possible damages disparity).

161 See Def.’s Super. MTD at 20-21.
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York Appellate Division, which could have found all claims must be brought in 

Delaware.162 The New York Appellate Division issued no such decision.

163

 But

also, says CRE, dismissal would deprive it of the bargain it struck through the 

UAPA.164 CRE is correct—it likely will be deprived of its bargain struck through 

the UAPA if Count III is dismissed because the Court previously held the UAPA, 

with its Delaware forum selection clause, covers the Ancillary Agreements. This 

factor favors CRE.

Factors one, four, and six favor RGI. Factors three, five, and seven favor 

CRE. Factor two is neutral. Weighing the factors (some of which are more 

substantial than others) and viewing the facts in the light most favorable to CRE, the 

Court DENIES RGI’s Motion to Dismiss Count III for overripeness. 

C. CHANCERY COUNTS I AND II LACK AN EQUITABLE BASIS AND THE COURT 

WILL NOT RETAIN JURISDICTION OVER THE ACTION.

The Court of Chancery, one is oft-reminded, “is proudly a court of limited 

jurisdiction”

165 that enjoys subject matter jurisdiction “only when (1) the complaint 

162 See Pls.’ Super. Answering Br. at 20.

163 See Letter for Judicial Review, Ex., Mar. 1, 2023 (D.I. 177 Super.) (unanimously affirming the 

New York Action Dec. 27 Decision in full, which held UAPA claims properly belong in 

Delaware).

164 See Pls.’ Super. Answering Br. at 20.

165 Citizens Against Solar Pollution v. Kent Cnty., 2023 WL 2199646, at *2 (Del. Ch. Feb. 24, 

2023); Nask4Innovation Sp. Z.o.o. v. Sellers, 2022 WL 4127621, at *3 (Del. Ch. Sept. 12, 2022); 

Parseghian v. Frequency Therapeutics, Inc., 2022 WL 2208899, at *5 (Del. Ch. June 21, 2022); 

Perlman v Vox Media, Inc., 2019 WL 267520, at *4 (Del. Ch. June 27, 2019). 
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states a claim for relief that is equitable in character, (2) the complaint requests an 

equitable remedy when there is no adequate remedy at law[,] or (3) Chancery is 

vested with jurisdiction by statute.”166 “An adequate remedy at law is one that will 

‘afford the plaintiff full, fair, and complete relief.’”167 “Plaintiff bears the burden of 

establishing the court’s subject matter jurisdiction.”168

“Although specific performance is an equitable remedy upon which equity 

jurisdiction might be predicated, that is true only if the complaint, objectively 

viewed, discloses a genuine need for such equitable relief.”169 “The fact that a 

complaint contains a prayer for an equitable remedy, without more, does not

conclude the jurisdictional analysis.”170 “[T]he appropriate analysis requires a 

realistic assessment of the nature of the wrong alleged and the remedy available in 

order to determine whether a legal remedy is available and fully adequate.”171 

CRE asserts the Court of Chancery has jurisdiction because the claims seek 

166 S’holder Rep. Servs. LLC v. DC Cap. P’rs Fund II, L.P., 2022 WL 439011, at *2 (Del. Ch. 

Feb. 14, 2022) (internal quotation marks and citation omitted).

167 Alliance Compressors LLC v. Lennox Indus. Inc., 2020 WL 57897, at *3 (Del. Ch. Jan. 6, 

2020) (quoting El Paso Nat’l Gas Co. v. TransAmerican Nat’l Gas Corp., 669 A.2d 36, 39 (Del. 

1995)). 

168 DC Cap. P’rs Fund II, L.P., 2022 WL 439011, at *2 (citations omitted); Alliance Compressors 

LLC, 2020 WL 57897, at *3 (“The party seeking an equitable remedy has the burden to show that 

a legal remedy would be inadequate.” (quoting Amaysing Techs. Corp. v. Cyberair Commc’ns, 

Inc., 2004 WL 1192602, at *2 (Del. Ch. May 28, 2004)).

169 Candlewood Timber Grp., LLC v. Pan Am. Energy, LLC, 859 A.2d 989, 997 (Del. 2004). 

170 Id. 

171 Id. (internal quotation marks and citation omitted).
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equitable remedies.172 Specifically: 

Counts I and II seek specific performance (an equitable remedy) of 

RGI’s contractual obligations under the Servicing and Participation 

Agreements to distribute funds held in the Lockbox account to CRE 

Participation, and injunctive relief prohibiting distribution of funds 

held in the Lockbox account to RGI until Plaintiffs’ offset rights 

are established.173

Additionally, CRE argues an adequate remedy at law is lacking because it’s 

unclear whether money damages would make it whole.174 Specifically, CRE asserts 

that “RGI has no business operations or other assets that it could use to satisfy a 

judgment—so if RGI steals funds that should otherwise go to Plaintiffs, it is unlikely, 

if not impossible, that Plaintiffs could ever recover those funds.”175

In April 2022, the Court granted the parties’ stipulation and order governing 

accounts and resolving the Status Quo Motion.176 That Order provided, in part: 

1. On the first business day of each calendar month, RGI shall pay 

CRE Niagara Participation Holdings LLC an amount equal to 

33.06% of RGI’s Swept Timeshare Contract Payments during the 

prior month.

2. On the first business day of each calendar month, RGI shall pay an 

amount equal to 16.94% of RGI’s Swept Timeshare Contract 

Payments during the prior month into the trust account of Kasowitz 

Benson Torres LLP. The amounts held in such escrowed trust 

account shall only be distributed as ordered by this Court, by 

another court of competent jurisdiction following entry of final 

172 Pls.’ Ch. Answering Br. at 35-36.

173 Id. (citation omitted). 

174 Id. at 36. 

175 Id. (citation omitted).

176 Order Governing Accounting & Resolving Status Quo Motion, Apr. 28, 2022 (D.I. 32 Ch.).
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judgment (including any appeal), or by mutual written agreement 

of RGI and CRE Niagara Participation Holdings LLC.177

CRE’s fear that RGI could unilaterally distribute funds from the Lockbox is 

addressed by the Court’s Order.178 And the disputed 16.94% sits in escrow until 

final resolution of both the Chancery and Superior Court actions. So the entry of the 

Status Quo Order effectively moots CRE’s argument that an adequate remedy at law 

did not exist.179 While CRE continues to argue that the “Status Quo Order simply 

ensures the funds are available for taking, not who is entitled to take” and “[a]lthough 

the Lockbox Funds are currently stored in escrow, there remains a very real and 

immediate controversy as to who owns the rights to the disputed 16.94%,”180 both 

statements cut against the need for equitable relief. Accordingly, the specific 

performance claims lack an equitable basis.

The Court of Chancery has the ability to retain jurisdiction even after finding 

177 Id. ¶¶ 1-2.

178 CRE asserts that equitable relief is necessary because it’s likely that RGI cannot satisfy an 

eventual judgment. Pls.’ Ch. Answering Br. at 36-37. But such a circumstance arises only in the 

narrow instances where there are “serious questions about defendants’ ability to pay a damage 

award.” Brinati v. TeleSTAR, Inc., 1985 WL 44688, at *4 (Del. Ch. Sept. 3, 1985) (citations 

omitted). For example, such a circumstance may arise in the dissolution or liquidation context. 

Id. at *1, *4; In re Cencom Cable Income P’rs, L.P. Litig., 2000 WL 130629, at *1, *7-9 (Del. Ch. 

Jan. 27, 2000). That is not the case here.

179 See, e.g., Bauer v. Gilpin, 1994 WL 469220, at *2 (Del. Ch. Aug. 11, 1994) (“With respect to 

plaintiffs’ complaint for specific performance, I conclude that the record demonstrates 

unequivocally that the complaint has been effectively mooted by the parties entering into a 

stipulation.”).

180 Pls.’ Ch. Answering Br. at 38. 
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the seemingly equitable claims lack an equitable basis.181 But such retention is 

wholly discretionary.182 Factors for the Court to consider when determining whether 

to retain jurisdiction include, for example, whether retaining jurisdiction would 

avoid a multiplicity of suits, to promote judicial efficiency, and to avoid extra 

expense.183 The Court finds those efficiencies weigh against retaining jurisdiction.

Accordingly, RGI’s Motion to Dismiss for lack of subject matter jurisdiction 

is GRANTED. Because the Court lacks jurisdiction to hear the action, CRE’s 

Motion for Partial Summary Judgment is DENIED as MOOT.

V. CONCLUSION

For the foregoing reasons, RGI’s Motion to Dismiss the Amended Complaint 

for Lack of Subject Matter Jurisdiction and for Partial Judgment on the Pleadings is 

DENIED in full.

Because the Court of Chancery lacks jurisdiction over the Chancery Amended

181 Zeborski v. Progressive Direct Ins. Co., 2014 WL 2156984, at *9 (Del. Ch. Apr. 30, 2014). 

The exercise of that discretion, via the clean-up doctrine, “can be appropriate for ‘any of several 

reasons, including to resolve a factual issue which must be determined in the proceedings; to avoid 

multiplicity of suits; to promote judicial efficiency; to do full justice; to avoid great expense; to 

afford complete relief in one action; and to overcome insufficient modes of procedure at law.’” Id. 

(quoting Darby Emerging Mkts. Fund, L.P. v. Ryan, 2013 WL 6401131, at *8 (Del. Ch. Nov. 27,

2013)). Here, judicial efficiency and avoiding multiplicity of suits counsel against retaining

jurisdiction.

182 Id.; Biegler v. Underwriting Serv. Mgmt. Co., LLC, 2022 WL 17820533, at *5 (Del. Ch. Dec. 

20, 2022) (“While this Court retains the power to decide those claims under the cleanup doctrine, 

it may decline to exercise that jurisdiction where, as here, this Court has not made any factual 

determinations.” (citation omitted)).

183 Zeborski, 2014 WL 2156984, at *9. 
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Complaint, the Motion to Dismiss the Chancery Amended Complaint is GRANTED

subject to CRE’s right to transfer the action to the Superior Court under 10 Del. C.

§ 1902 (which might be done via appropriate amendment of its operative pleadings 

there). As the Court lacks jurisdiction, it cannot hear the merits of CRE’s Motion 

for Partial Summary Judgement on Counts III and IV. Accordingly, CRE’s Motion 

for Partial Summary Judgment is DENIED as MOOT. 

CRE has sixty days to elect to transfer the Chancery action to the Superior 

Court (or amend the necessary pleadings that are already-extant therein to effect a 

de facto transfer).

184

 If CRE does not move this Court to transfer the action (or file 

the amendments that it deems necessary) within that time, that action will be 

dismissed but with final judgment thereon withheld until such time as the stipulated 

status quo order is no longer necessary.

IT IS SO ORDERED.

_________________________

Paul R. Wallace, Judge

184 DEL. CODE ANN. tit. 10, § 1902 (2023) (noting that a party adversely affected may transfer to 

the appropriate court “within 60 days after the order denying the jurisdiction of the first court has 

become final,” and that Section 1902 “shall be liberally construed to permit and facilitate transfers 

of proceedings between the courts of this State in the interests of justice”).